Brown J.
John Seaman, the plaintiff, was the guardian of the estate of the defendant Josiah Mead, appointed by the surrogate of the county of Orange. After Mead attained the age of fourteen years, Seaman was superseded in his trust, by an order of the surrogate, and Peter Ball appointed in his place. Proceedings were taken to compel him to account. Process for that purpose was duly served upon Seaman, who appeared and [528]*528litigated the questions arising upon the accounting : and, on the 9th of July, 1844, the surrogate made a decree, that Seaman pay to Ball, the new guardian, $427,87, so much money in the hands of Seaman, and which he had received as guardian: and that, upon complying with such decree, he should be discharged from all further liability on account of the trust. The jurisdiction of the surrogate over the subject matter of the decree, and his power to compel the account, is given by §§ 9,10 of the a.ct concerning guardians and. wards, (R. S. part 2, ch. 8, title 3. 2 R. S. 2d ed. 84, 85,) and is not disputed. But it is said that his authority is limited to the taking and stating the accounts, and establishing the amount in the guardian’s hands ; and does not extend to the making of a decree for the payment of the money. For authority in favor of this position, I am referred to the published opinion.of Mr. Justice McCoun, given in the matter of John Seaman, when brought before this court upon a habeas corpus, and to the absence of express authority in the statutes defining the powers and jurisdiction of the surrogate, and the surrogate’s court.
Surrogates’ courts are “courts of peculiar and special jurisdiction.” Created by the statute, they can exercise such power only as the statute gives them.
I am next to consider, whether the surrogate had authority • to enforce obedience to the decree, by process of attachment [531]*531against the person. The 4th suddivision of section 6, of the act in regard to surrogates’ courts, (2 R. S. 155, 2d ed.) declares that the surrogate shall have power “ to enforce all lawful orders, process, and decrees of his court, by attachment against the persons of those who shall neglect or refuse to comply with such orders and decrees, or to execute such process.” Orders, process and decrees, comprehend the entire proceedings in any given matter, petition, or application, which affect parties, witnesses, and officers. It is quite apparent that the language of the 4th subdivision is not limited in its application, to enforce obedience to subpoenas, to compel witnesses to give evidence, to the preservation of order during any judicial proceeding, nor to enforce orders, which require the production of wills, or other papers, or the filing of inventories: nor to compel the appearance of parties; because the performance of the latter class of duties is expressly provided for under the name of orders and process, in the 4th subdivision; and the former in the 2d and 6th subdivision of the same section. The laws which reorganized and remodelled the surrogate’s court, and which regulate its proceedings and practice, took effect on the 1st January, 1830 ; and, from that time, until the passage of the act of the 16th May, 1837, concerning “ the proof of wills, executors and administrators, guardians and wards, and surrogates’ courts,” (Sess. Laws of 1836, p. 524,) no execution could issue upon a decree rendered therein. So that unless decrees for the payment and delivery over of trust money, or property, by executors, administrators, and guardians, are the “ lawful decrees,” which that court may enforce under the 4th subdivision, there were no means provided by law, short of the judgment of some other court, by which they could be carried into effect. The decrees of surrogates’ courts were mostly of this character, and I think the main, if not the sole object of the 4th subdivision of § 6, was to provide means to ensure their performance. The legislature did not invest these courts with ample and almost exclusive jurisdiction over a certain class of trusts, and at the ■same time withhold the means to enforce obedience to the decrees they might make. If a decree provides for the surrender [532]*532and delivery of specific property, or the transfer of securities which the guardian has in his possession, or under his control, the opinion of Mr. Justice MeCoun to which I am referred is an authority that “ the coercive remedy in such cases is an attachment, as for a contempt, founded on the refusal to do the act required.” The power to enforce the performance of a surrogate’s decree by attachment against the person—if it exists at all—exists by force of the 4th subdivision of § 6; and that does not discriminate between decrees for the payment of money, and those for the transfer and delivery of specific property. The 63d and 64th sections of the act of the 16th May,. 1837, before referred to, (Session Laws of 1837, page 535,) provide that the certificate of a surrogate’s decree for the payment of money, by an executor, administrator, or guardian, may be filed with one of the clerks of the supreme court, and docketed as a judgment, upon which execution may be issued in the usual form, as though it was a judgment therein obtained. This is said to take away the poAver to proceed by attachment against the person, because the 3d subdivision of the first section of the act concerning “proceedings as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions,” (2 R. S. 440, 2d ed.) provides for the punishment of parties, by fine and imprisonment, for the non-payment of money, in those cases only where by law execution can not be awarded. The parties here spoken of, are parties to civil actions pending in courts of record, and the act relates exclusively to courts of record. The surrogate’s court is not a court of record, nor are the proceedings taken there against the class of persons, over whom it exercises jurisdiction, civil actions in the legal sense of the term. Its poAvers to punish for contempts, are not derived from this statute, but exist independently of it. It conferred no power on the surrogate, and its repeal could take none away. I see nothing in the act of the 16th May, 1837, which indicates an intention to impair existing remedies, but some of its provisions have an opposite tendency. The 66th section makes provision for the issuing of attachments authorized by law, to en- ' force orders, and- decrees, by the surrogate of one county, to the [533]*533officers of any other county to be executed, and for the arrest of the person against whom such process is issued, and his conveyance to the place where it may be returnable. And § 67 provides for the return of such attachments, and the giving of a bond upon the arrest, as prescribed in §§ 10,12 and 13 of the act in regard to proceedings for contempts. (2 R. S. 442, 2d ed.) Such power, therefore, as the surrogate had to enforce his decrees, previous to the passage of the act of 16th May, 1837, is confirmed and enlarged by force of its provisions.
It must not be forgotten, that when the statute, which defines the powers and jurisdiction of the surrogate’s court, took effect, the law of imprisonment upon process in civil actions was in full force. To arrest and imprison the person of a party against whom a decree or judgment for the payment of money had been obtained, was one of the usual and ordinary remedies at the command of the creditor. The 1st section of the “ act to abolish imprisonment for debt, and to punish fraudulent debtors,” passed April 26th, 1831, (Session Laws of 1831, page 396,) takes away the remedy by imprisonment on civil process, in suits and proceedings for the recovery of money due upon judgments, or decrees “ founded upon contract, or due upon any contract, express or implied.” Unless the judgment or decree is founded upon a contract, or the money is due upon a contract express or implied, the act affords no protection, and the power to imprison remains the same as before it was passed. The relation which the guardian maintains to his ward, is not that of a contract debtor to his creditor. Where he has received the money of his ward the law will doubtless raise an implied promise to pay it over, when the latter arrives at age, if he choose to bring his action of assumpsit, and give the transaction that aspect. But there is no act of the former, I" apprehend, that can change his duties and liabilities, from those of a trustee to those of a mere contract debtor. The debtor who acquires money upon a. loan, or merchandise upon a contract of sale on credit, does so with the intention, and express understanding, of applying it to his own use, at his own pleasure, and of employing it in his- own business, for his own emolument; and the [534]*534hazard of his ability to pay when the term of the credit has elapsed, enters into the essence of the contract. The guardian takes the property, or the money, of the ward, with no such understanding. His trust is one of obligation and duty, and not of speculation and profit. He can not mingle the trust money or property with his own, or convert it to his own use, however honest and sincere may be his purpose to restore it when want-. ed. (2 Kent’s Com. 229, 230. 2 Story’s Eq. Jur. § 1270. Schieffelin v. Stewart. 1 John. Ch. Rep. 620.) He is to hold the one and invest the other for the profit of his ward, and to have the property and the money, or the securities which represent the money, at all times subject to such order as the court, from which he derives his office, may see proper to make. If the order is to deliver over the property, transfer the securities, or pay the money to the ward, when of age, or to the new guardian when he is not; the law assumes his ability to do what the obligations of his duty require he should do, and he can not evade his responsibilities, and change his position as a trustee, into that of a mere contract debtor, by the allegation real or pretended, that the trust property has been converted to his own use. The 2d section of the non-imprisonment act declares, that its provisions shall not extend to contempts to enforce civil remedies, and the act of the 9th May, 1846, (Sess. Laws of 1846, p. 164,) provides that in actions upon contract for moneys received by male persons in a fiduciary capacity, the defendants “ shall be liable to imprisonment in the same manner as in actions for wrongs.” These several enactments indicate no disposition to relax the law of imprisonment, in regard to trustees made liable for trust property.
The plaintiff next insists that the proceedings and process, under which he was arrested and imprisoned, afford no defense to the action, because the contempt is not specially and plainly charged in the warrant of commitment. He relies upon the 3d subdivision of § 42, of the act relating to writs of habeas corpus, certiorari, &c. (2 Rev. Stat. 470, 2d ed.) which directs that the officer, before whom the party shall be brought on such writ, shall remand him, if it appear he is detained for any Contempt [535]*535Specially and plainly charged in the commitment; and upon the 3d subdivision of § 43, (2 R. S. 470, 2d ed.) which directs his discharge, £i when the process is defective in some matter of substance required by law, rendering such process void.” These provisions, however, must be construed in connection with ii 2-3 and 24 of the act concerning ££ Proceedings as for contempts to enforce civil remedies,” &c. (2 R. S. 444, 2d ed.) which declare, that “ when the misconduct complained of, consists in the omission to perform some act or duty, which it is yet in the power of the party to perform,”—£! the order and process of commitment shall specify the act-or duty to be performed, and the amount of the fine and expenses to be paid.” This last act regulates proceedings for contempts in courts of record exclusively, but the 4th subdivision of § 6 of the act which authorizes attachments by surrogates, (2 R. S.155, 2d ed.) provides that they “shall be in form similar to that used by the court of chancery in analogous cases ;” so that the order and process of commitment in the surrogate’s court, and in the courts of record, must be similar in form. The plaintiff was arrested by virtue of the attachment set out in the answer, issued and tested on the 31st May, 1848, and directed to the sheriff of the city and county of Ncw-Yorlc. It recites the claim of the 9th of July, 1844, made against him as the late guardian of the defendant Mead, for the payment of the sum of $427,37, within 30 days from the time of the service of a copy of the decree. It also recites the due service of the decree, a demand of payment of the money, the lapse of the 30 days, and the omission to pay. He gave a bond for h;s appearance in the usual form, and in pursuance thereof, on the 28th June, 1848, the return day of the attachment, he appeared before the surrogate and was examined upon interrogatories ; and thereupon the surrogate made another order, that he be committed to the common jail of the county of Orange, there to remain, charged with the contempt; until he should pay the money, with the interest and fees. The process of commitment was issued and tested on the same day. It also recites the order of the 26th June, 1848, by which Seaman was ordered to pay Josiah Mead, who had then attained the age of 21 years, the sum of [536]*536$427,37, with the interest, and that he be committed to the common jail of the county of Orange, there to remain charged with the contempt mentioned in the order, until he should pay such money, and that a warrant issue for that purpose. The command of the process to the sheriff is, that he take the body of Seaman and keep the same in his custody, in the common jail of the county, until he pay such money, or until the court make an order to the contrary, or he be discharged by due course of law. The misconduct complained of, consisted in the omission to pay the money mentioned in the decree, and the order and process specified the act or duty to be performed, and the sum to be paid, and the duration of the imprisonment. Both the order and the process are, in my judgement, in strict and literal conformity with the requirements of §$ 23 and 24 of the act in regard to “ proceedings, as for contempts, to enforce civil remedies,” &c. The People v. Nevins, (1 Hill, 155,) is an authority in favor of this position. The defendant was an attorney of this court. Proceedings were taken against him by attachment, and he was committed to the custody of the sheriff of the county of Erie, by authority of a rule entered upon the minutes of the court, which imposed upon him a fine, sufficient in amount to indemnify the relator for money collected by the defendant for him, to be ascertained by the report of the clerk, and which directed him to remain in custody until such sum, with the costs and expenses of the commitment, should be paid. The report of the clerk was filed, on the day after the rule was entered, and ascertained the sum to be paid, at $860,60. He was discharged from his imprisonment by a commissioner, upon habeas corpus, on the ground of the insufficiency of the process of commitment. The proceedings were then brought into this court to be reviewed on certiorari, and it was adjudged, (page 158,) that “the sum for the non-payment of which a man is commited for contempt, should no doubt be specified by the rule, but that may he directly, or by reference to a proceeding taken to ascertain the amount through the proper officer, whose report, on its being filed and confirmed, becomes the act of the court, and may be read as part of the rule.” And that as the duty to be performed, [537]*537and the duration of the imprisonment, were both specified in the rule, it was a substantial, if not a literal compliance with the requisites of j§ ‘23 and 24 of the act in regard to “ proceedings as for contempts, to enforce civil remedies,” &c. I can see no difference in the form or sufficiency of the commitment, between the case of the People v. Nevins, and that under consideration, except that in the former it was by a rule, and in the latter by a warrant.
. Judgment must be entered for the defendants upon the demurrer, with leave to the plaintiff to withdraw the demurrer and reply within twenty days, on payment of costs.
Judgment accordingly.
See the ease of Wilson and Thompson, exr’s &c. appellants, v. the Baptist Educational Society, respondents, (ante, page 308.)